Court of Appeal for Ontario
Date: February 15, 2019 Docket: C65604
Justices: Sharpe, Benotto and Brown JJ.A.
Between
Her Majesty the Queen Respondent
and
Andrew Augustine Appellant
Counsel
Stephen Whitzman, for the appellant
Dominic Bell, for the respondent
Heard: February 7, 2019
On appeal from the sentence imposed on June 25, 2018 by Justice Joseph Nadel of the Ontario Court of Justice.
Reasons for Decision
Overview
[1] On November 1, 2016, the appellant, Andrew Augustine, was driving on a two-lane highway. He attempted to pass two vehicles driving in front of him. As he pulled out to pass, he saw an on-coming vehicle. Although he was able to avoid that vehicle, he collided with another oncoming vehicle. That vehicle, in turn, collided head-on with a third vehicle. Three occupants in those vehicles sustained serious injuries; all three vehicles were considered "write-offs". Mr. Augustine was 21 years old at the time.
[2] Mr. Augustine pleaded guilty to three counts of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code.
[3] The Crown and defence put forward a joint submission of a suspended sentence, with 30 months' probation and community service.
[4] The sentencing judge did not accept the joint submission. Instead, he imposed an intermittent sentence of 75 days' imprisonment, three years' probation, 240 hours of community service, a five-year driving prohibition, and a DNA order.
[5] Mr. Augustine seeks leave to appeal his sentence. He advances two main grounds of appeal.
First Ground: The Joint Submission Did Not Cross the Threshold for Rejection
[6] Mr. Augustine submits the sentencing judge erred in principle by departing from the joint submission for a non-custodial sentence, arguing that the joint submission did not cross the high threshold for rejection. We are not persuaded by this argument.
[7] The test for rejecting a joint submission is set out in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at paras. 32 and 34:
a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest; and
a joint submission should not be rejected lightly, as a rejection denotes that a submission is "so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down."
[8] The trial judge gave two reasons why he rejected the joint submission. First, he explained that a non-custodial sentence would bring the administration of justice into disrepute "given the damage [Mr. Augustine] caused". Later in his reasons the trial judge stated: "I have to impose a sanction that I think is appropriate and bearing in mind the damage and the injuries to others, I do not think a suspended sentence, even given your youth and your contrition, is an adequate remedy given the other factors and principles of sentencing."
[9] The trial judge's assessment of the seriousness of the offences was supported by the evidence, which showed that the occupants of the other vehicles suffered serious injuries:
Mr. Evoy suffered multiple rib fractures, a collapsed left lung, a crushed sternum in two places, and injuries to one leg. Eight months after the collision he still suffered acute pain in his lower back;
Ms. Couloigner suffered a perforated bowel that required emergency surgery, soft tissue injuries to left knee and lower back and a large hematoma to her abdomen;
Mr. Knabenschuh, who was in the same car as Ms. Couloigner, suffered a fractured sternum, a badly lacerated left forearm, concussion, and bruising.
[10] Mr. Augustine argues that the sentencing judge improperly sourced the information about the victims' injuries from the Crown's pre-trial conference brief. Although the trial judge did refer in his reasons to information about the victims' injuries contained in the Crown's judicial pre-trial brief, the same information – which was not disputed – was contained in the filed victim impact statements, which the trial judge was entitled to take into account: Criminal Code, s. 722(1). In the circumstances, there was no prejudice to Mr. Augustine and we see no error.
[11] As his second reason for rejecting the joint submission, the trial judge noted that the principles of denunciation and deterrence are relevant to dangerous driving offences committed by a first-time offender and otherwise law-abiding citizen, such as the appellant: R. v. Frickey, 2017 ONCA 1024, 22 M.V.R. (7th) 184, at para. 4.
[12] Taking those reasons together, we see no error in principle in the trial judge's rejection of the joint submission for a non-custodial sentence.
[13] The trial judge did not accept Mr. Augustine's submission in support of the joint submission that the Crown's case was "not a slam dunk". Mr. Augustine contends this amounts to an error. We disagree. The trial judge quite properly concluded that in the circumstances "this was an obviously entertained and entered guilty plea."
Second Ground of Appeal: The Sentencing Process Was Unfair
[14] Mr. Augustine submits the procedures followed by the sentencing judge were unfair in several respects.
The Opportunity to Make Further Submissions
[15] Mr. Augustine contends that in the circumstances the sentencing judge should have afforded counsel the opportunity to make further submissions to address his concerns before he passed sentence. That is exactly what the sentencing judge did.
[16] Mr. Augustine entered pleas of guilty at the November 3, 2017 hearing. The trial judge was aware that counsel intended to make a joint submission for a sentence that would not impose a jail term, and at the next attendance on January 24, 2018, he stated that he had told counsel he could not countenance a sentence that did not involve "some modest amount of time in custody". The sentencing hearing was adjourned to June 25, 2018.
[17] At that hearing, counsel confirmed that previously the trial judge had indicated he was "bothered" by the proposed joint submission. Defence counsel stated:
I think it's crystal clear that not only have you not committed, you've made it clear that you are or were and, I suspect, still would be struggling with what the right thing to do is here and we have both approached it is in that interim time on that basis.
[18] Counsel then made their arguments in support of the joint submission, including references to the case law. The trial judge followed the procedure for entertaining further submissions set out in Anthony-Cook.
Opportunity to Withdraw Guilty Pleas
[19] Mr. Augustine submits that the sentencing judge erred by failing to allow him to withdraw his plea: Anthony-Cook, at para. 58. In the circumstances, we see no unfairness in the process followed by the trial judge.
[20] As the trial judge noted in his reasons, at the judicial pre-trial held before Mr. Augustine entered his pleas, the pre-trial judge "came to feel that he could not accept a non-custodial sentence." As a result, the case was transferred to the trial judge, who "advised counsel and they were aware that I was not necessarily going to accept their joint submission." The record discloses that Mr. Augustine entered his pleas knowing that the trial judge might well not accept the joint submission on sentence.
[21] Mr. Augustine was represented by counsel throughout. At no point during the sentencing process did counsel ask for leave to withdraw the guilty pleas. Accordingly, we see no unfairness in the procedure followed by the trial judge.
Prejudging the Sentence
[22] At the hearing of the appeal Mr. Augustine's counsel advanced an argument not made in his factum or identified in his notice of appeal. He submitted that statements made by the sentencing judge at the January 24, 2018 attendance demonstrated that he had already made up his mind about the sentence.
[23] The January 24, 2018 attendance was to set a date for the sentencing hearing. Mr. Augustine appeared through an agent for his counsel. During the course of the brief attendance the sentencing judge addressed one of the victims, Ms. Couloigner, stating: "You may remember that there had been a resolution effected in this matter where the Crown was going to ask to agree with the defence for a sentence that would not impose jail. I told the lawyers, I couldn't countenance that, so this young man is going to spend some modest amount of time in custody, undoubtedly."
[24] We do not accept appeal counsel's submission that these statements disclose that the sentencing judge had pre-judged the case. Mr. Augustine's trial counsel did not advance such an objection at the June 25, 2018 sentencing hearing. On the contrary, as set out in para. 17 above, defence counsel confirmed his understanding of the discussions up until that time in chambers or on the record, stating that it was "crystal clear" that the trial judge had not committed on the sentence.
Disposition
[25] For these reasons, Mr. Augustine is granted leave to appeal his sentence but his appeal is dismissed.
"Robert J. Sharpe J.A." "M.L. Benotto J.A." "David Brown J.A."